146 Dundas Corp. v. Chemical Bank

• Decision Date: 10 August 1987
• Citation: 511 N.E.2d 520,400 Mass. 588
• Parties: 146 DUNDAS CORPORATION et al. 1 v. CHEMICAL BANK et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 520

511 N.E.2d 520

400 Mass. 588

146 DUNDAS CORPORATION et al. ¹ v. CHEMICAL BANK et al. ²

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 5, 1987.

Decided Aug. 10, 1987.

Robert M. Bonin (Judith E. Beals, Boston, with him), for plaintiffs.

Gerald S. Garnick, Hyannis, for Chemical Bank.

Richard L. Alfred (Robert D. Richman, Boston, with him), for Edward C. Maher & others.

Before HENNESSEY, C.J., and WILKINS, ABRAMS and NOLAN, JJ.

ABRAMS, Justice.

This case raises the question whether a mortgage foreclosure sale of three parcels of property to the second highest bidder is valid if the term permitting the second highest bidder to purchase the property, if the highest bidder defaulted, is announced orally at the sale but was not included in the published notice of the sale. The plaintiffs are 146 Dundas Corporation (Dundas), the mortgagor of the property, and Timothy J. Sheehan, III, ³ the defaulting bidder at the foreclosure sale. The defendants are Chemical Bank, the mortgagee of the property; Edward C. Maher, the second highest bidder and ultimate purchaser of the property from Chemical Bank; and Jay Z. Aframe and Francis G. McGee, the present owners of the property. After the sale of the property to the second highest bidder, the plaintiffs sought a judgment declaring the sale to Maher to be invalid. See G.L. c. 231A (1984 ed.). The plaintiffs further sought a declaration that the sale from Maher to Aframe and McGee is invalid and that Sheehan, III, the highest bidder, has the right to purchase the property. Finally, in the alternative, they asked that the court set terms and conditions for Dundas's right to redeem the property. On cross motions for summary judgment, a judge in the Superior Court granted the defendants' motion for summary judgment and denied the plaintiffs' motion. The judge determined "that the sale to defendant Maher was, on the undisputed facts, valid as a matter of law." ⁴ The plaintiffs appeal. We transferred the case to this court on our own motion. We affirm.

We summarize the facts. ⁵ Dundas owned three parcels of land in Barnstable. On June 30, 1978, Dundas, as security for a loan, mortgaged the property to Chemical Bank. Timothy J. Sheehan, Jr., Dundas's principal owner, signed the mortgage. The mortgage contained the statutory power of sale. See G.L. c. 183, § 21. ⁶

Dundas defaulted on its loan, and on or about July 21, 1982, Chemical Bank commenced foreclosure proceedings. On September 21, 1982, a judge in the Superior Court entered an order authorizing Chemical Bank to foreclose on the mortgage. A foreclosure sale was scheduled and advertised to take place on November 6, 1982.

On November 5, 1982, Dundas filed a petition under Chapter 11 of the Bankruptcy Code in the United States District Court for the District of New Jersey. Because the filing of a bankruptcy petition automatically stays any actions to obtain possession of a debtor's property, see 11 U.S.C. § 362(a)(2) (Supp.III 1985), Chemical Bank moved in the Bankruptcy Court for relief from the automatic stay. At a hearing on the motion, Chemical Bank and Sheehan, Jr., agreed that Dundas would resume making payments to Chemical Bank. On October 26, 1983, the judge entered a consent judgment. ⁷

Dundas defaulted on its obligations under the consent judgment. On May 22, 1984, the Bankruptcy Court judge ordered that the stay be lifted and that Chemical Bank be permitted to foreclose its mortgage and complete the foreclosure sale. Following the procedure set forth in G.L. c. 244, § 14, ⁸ Chemical Bank published notice of the time and the place of the sale. The published notice contained a description of the property. The published notice also included terms for the completion of the sale. ⁹

The sale took place on June 9, 1984, on the property. Approximately twenty-nine bidders were present. At the time of the sale, the auctioneer announced that, if the highest bidder failed to complete the sale, the property would be sold to the second highest bidder. The highest bidder was Sheehan, III, with a bid of $425,000. The second highest bidder was the defendant Maher with a bid of $420,000. The auctioneer entered into memoranda of sale with both Sheehan, III, and Maher. The memoranda were the same, except that Maher's memorandum contained the additional statement that his "right [as second highest bidder] to purchase the property under the Memorandum of Sale shall only take effect upon the default of the highest bidder to purchase the said property." Both Sheehan, III, and Maher made the required deposit.

The Superior Court approved the foreclosure sale, and the closing was scheduled to take place on July 20, 1984. On February 14, 1986, ¹⁰ the Superior Court approved the sale of the property to Maher, and the sale was completed on that day. Also on that date, Maher conveyed the property to Jay Z. Aframe and Francis G. McGee as trustees of the Great Bridge Realty Trust.

On March 6, 1986, the plaintiffs brought this action. On August 8, 1986, the defendants filed a motion for summary judgment. See Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). The plaintiffs also moved for summary judgment. On September 11, 1986, the judge allowed the defendants' motion for summary judgment and denied the plaintiffs' motion.

On appeal, the question is whether the oral announcement of the term that, should the highest bidder fail to complete the sale the property would be sold to the second highest bidder, invalidates the sale to Maher and the subsequent sale to the trustees. The question encompasses a determination whether an oral announcement at an auction of the term at issue is permissible and whether the term itself is valid.

The statutes governing a mortgage foreclosure under the power of sale, see G.L. c. 183, § 21, and G.L. c. 244, § 14, see notes 5 and 7, supra, do not prescribe the specific method by which a foreclosure sale should proceed. General Laws c. 183, § 21, requires that the sale be by public auction, but the statute does not provide the terms by which the auction should be conducted. General Laws c. 244, § 14, requires that the mortgagee publish notice of the sale, but the statute does not provide the required form of notice. ¹¹

At common law, "the basic rule of law applicable to the foreclosure of real estate mortgages is that 'a mortgagee in exercising a power of sale in a mortgage must act in good faith and must use reasonable diligence to protect the interests of the mortgagor.' " Seppala & Aho Constr. Co. v. Petersen, 373 Mass. 316, 320, 367 N.E.2d 613 (1977), quoting West Roxbury Co-op. Bank v. Bowser, 324 Mass. 489, 492, 87 N.E.2d 113 (1949). "The power of sale in the mortgage is very broad. It authorizes the mortgagee ... to sell the granted premises at public auction on or near the premises.... [B]y reasonable implication it authorizes the mortgagee to adopt such terms of sale as are usual and necessary to execute it with effect. The power to do an act includes the power to do all such subordinate acts as are usually incident to or are necessary to effectuate the principal act in the best manner." Pope v. Burrage, 115 Mass. 282, 285 (1874).

The foreclosure sale in this case met the statutory requirements. The sale was a public auction. Chemical Bank published notice of the sale. There is no claim that the description of the land in the published notice is inaccurate. Further, there is no claim that the published terms of the sale, note 9 supra, were not followed.

The general rule is that, "[s]ince no contract can be created until bidding begins, it necessarily follows that even though an auction sale has been advertised ... to be held under ... specific conditions, the auctioneer may without liability change those conditions by oral announcement at the commencement of the sale." 1 S. Williston, Contracts § 29, at 78 (3d ed. 1957). See Restatement (Second) of Contracts § 28(2) (1979). "[F]ormal written terms [in the notice of sale] may be modified or added to by the auctioneer at the beginning of the sale." Kennell v. Boyer, 144 Iowa 303, 306, 122 N.W. 941 (1909). See Coleman v. Duncan, 540 S.W.2d 935, 938 (Mo.Ct.App.1976); Hamrick v. Summey, 282 S.C. 424, 427-428, 320 S.E.2d 703 (1984); Keske v. Boeder, 168 Wis. 369, 371, 170 N.W. 247 (1919). This general rule applies to auctions of real property. Well v. Schoeneweis, 101 Ill.App.3d 254, 257, 56 Ill.Dec. 797, 427 N.E.2d 1343 (1981). Moore v. Berry, 40 Tenn.App. 1, 8, 288 S.W.2d 465 (1955). Holston v. Pennington, 225 Va. 551, 556, 304 S.E.2d 287 (1983). A term requiring a deposit, although not published in the notice but instead announced orally at the sale, is valid. See Model Lodging House Ass'n v. Boston, 114 Mass. 133 (1873). If the term permitting the second highest bidder to purchase the property on default of the highest bidder is valid, we see no reason to invalidate the sale because the term was announced orally.

Chemical Bank's published notice was proper in its description of the property and the terms of the sale set forth. In response to the published notice, approximately thirty-six prospective bidders came to the sale. In the presence of all of the bidders and prior to the commencement of the bidding, the auctioneer announced that the property would be sold to the second highest bidder, if the highest bidder defaulted. Thus, even before the bidding began, the bidders were on notice of the additional term and of the fact that the sale to the highest bidder was conditional on the highest bidder's completing the purchase.

States which have considered the problem generally conclude that, in mortgage foreclosure sales, if the highest bidder fails to pay, the trustee of the property may declare that the next highest bidder may purchase the property, may resell the property promptly, or may readvertise the sale for another day. See Watson v. Vafides, 212 So.2d 358, 361-362 (Fla.Dist.Ct.App.1968); Stone v. Stone, 176...